The defendant, Tracey T. Dunlop, appeals his convictions for the murder
See footnote
of Carolyn
Hawkins, two counts of robbery, both as class B felonies,
See footnote
and two counts
of criminal confinement, both as class B felonies,
See footnote
and his sentence of life
imprisonment without parole. In this direct appeal, he claims: (1) erroneous
instruction on the defense of voluntary intoxication; (2) erroneous instruction on life without
parole; and (3) improper sentence.

Instruction on Voluntary Intoxication Defense
The defendant first contends that the trial court erroneously instructed the jury on
the defense of voluntary intoxication. He argues that it invaded the province
of the jury, mandated a conviction upon the finding of certain facts, and
mandated a minimum degree of intoxication, in violation of Article I, Section 19
of the Indiana Constitution.
See footnote
The defendant challenges the following language from Final Instruction No. 34 regarding the
defense of voluntary intoxication, given over his objection at trial:
Mere intoxication is not sufficient unless there is some mental incapacity resulting therefrom
as will render a person incapable of thinking deliberately and medi[t]ating rationally.
A defendant should not be relieved of responsibility if he could devise a
plan, operate equipment, instruct behavior of others or carry out acts requiring physical
skill.

Record at 208. Citing
Curran v. State, 675 N.E.2d 341, 344 (Ind.
Ct. App. 1996), the defendant contends that this instruction impermissibly invaded the province
of the jury, violating Article I, Section 19 by mandating a conviction upon
the finding of certain facts and by requiring the jury to find specific
facts in order to accept the voluntary intoxication defense.
The
Curran court found that this same instruction invaded the province of the
jury in violation of Article I, Section 19 of the Indiana Constitution because
it [bound] the minds and consciences of the jury to return a verdict
of guilty upon finding certain facts, Curran, 675 N.E.2d at 344 (quoting Pritchard
v. State, 248 Ind. 566, 575, 230 N.E.2d 416, 421 (1967)),
See footnote
and because
it improperly required a certain degree of intoxication be proven before the jury
could accept the defense. Id. Nevertheless, the Curran court held that
the erroneous instruction was harmless because the evidence is such that the jury
could not have properly found that Curran was so intoxicated that he was
incapable of forming the requisite criminal intent. 675 N.E.2d at 345.
In White v. State, 675 N.E.2d 345 (Ind. Ct. App. 1996), the Court
of Appeals addressed the same issue and found a similar instruction likewise erroneous
but not harmless in light of the evidence.
A contrary view was recently expressed in
Cheshier v. State, which expressly disapproved
of Curran. 690 N.E.2d 1226, 1228 n.2 (Ind. Ct. App. 1998).
The Cheshier majority observed that we have repeatedly used the challenged language in
our opinions. Id. at 1228 (citing Legue v. State, 688 N.E.2d 408,
410 (Ind. 1997); Miller v. State, 541 N.E.2d 260, 263 (Ind. 1989); Terry
v. State, 465 N.E.2d 1085, 1088 (Ind. 1984)). See also Horan v.
State, 682 N.E.2d 502, 509 (Ind. 1997). As Judge Sullivan noted in
his separate opinion concurring in result in Cheshier, however, in none of these
cases did we approve of a jury instruction containing this language. 690
N.E.2d at 1229. Rather, we were evaluating whether the evidence supported the
giving of an intoxication instruction or was sufficient for the resulting conviction.
While articulating our appellate rationale for these issues, we did not intend to
create a trial standard for application by juries. The mere fact that
language appears in appellate opinions does not necessarily make it proper for jury
instructions. See Spence v. State, 429 N.E.2d 214, 216 (Ind. 1981); Meek
v. State, 629 N.E.2d 932, 933 (Ind. Ct. App. 1994). Cf. Myers
v. State, 532 N.E.2d 1158, 1159 (Ind. 1989). We hold that it
was error to instruct the jury that the intoxication defense was unavailable if
the defendant could devise a plan, operate equipment, instruct behavior of others or
carry out acts requiring physical skill. Record at 208.
As noted in Curran, however, such an erroneous instruction will not require reversal
on appeal if we find the error to be harmless in light of
the trial evidence. 675 N.E.2d at 344. The evidence at trial
included the defendants audio-taped statement given to police shortly after he was taken
into custody. In the defendants statement, he detailed the place where he
obtained the knife before he went to the victims home, the sequence of
events surrounding the stabbing, the locations where he found each item of jewelry
he took from the home, and where the police would find the items
he did not sell for cocaine. Having obtained a knife from a
jar under the microwave in his mothers kitchen, he then took his mothers
bicycle and rode to the victims house. He knocked on her door,
entered, and asked where her children were. Learning that the children were
asleep, he began to stab the victim, but one of the children entered
while he was stabbing the victim. The victim told her daughter to
run out the back door and tried to get herself out the front
door, but the defendant grabbed the child and threatened to kill her because
he knew [the victim] wouldnt go out that door and sacrifice her daughters
life like that [be]cause . . . she [was] probably thinking . .
. [I would] stab [her daughter] too. Record at 568.
The defendant then grabbed the daughter and demanded that she help him find
money or other valuables. While they were looking for money, a younger
child awoke, and the defendant tried to keep her from seeing her mother,
but ran from the house when he was unable to keep the child
out of the room. The defendant returned to his mothers house by
bicycle. He washed the knife and replaced it in the kitchen.
Noticing that his shirt was bloody, he removed it and hid it behind
a chair. Then he went into the bathroom and washed blood from
his hands and the rings that he had taken.
From this evidence, we conclude that a reasonable jury could not have found
that the defendant was so intoxicated that he was incapable of forming the
requisite intent. The instruction error was harmless.

Instruction on Life Imprisonment Without Parole
The defendant contends that the trial court erred in permitting the jury not
to make a recommendation as to whether the defendant should receive life imprisonment
without parole. He argues that when the jury was unable to reach
a recommendation, the court should have required the jury to recommend against life
imprisonment without parole. Instead, the trial court discharged the jury without receiving
any jury recommendation and proceeded to sentence the defendant to life imprisonment without
parole.
The defendant cites
Burris v. State, 465 N.E.2d 171 (Ind. 1984), to support
his argument that the jury does not have the option to decline to
make a recommendation. In Burris, an instruction stated that if each juror
found that the requisite circumstances necessary to support a recommendation for the death
penalty were not present, the recommendation "may" be against the death penalty.
Id. at 189. We held the instruction erroneous because, in the case
of a unanimous vote against the death penalty, the jury has no optionCit
must report its recommendation against the death penalty. Id. However, Burris
did not address the question of the jury's inability to reach any kind
of recommendation, as occurred here.
The defendant further argues that the jury was given conflicting instructions regarding whether
it was required to recommend against life without parole in the event it
could not reach a unanimous agreement. Sentencing Phase Preliminary Instruction No. 46
included the sentence: "If you do not reach this unanimous decision [that
a proven aggravating factor outweighs any mitigating factors found], you must recommend against
sentencing Tracey Dunlop to life imprisonment without parole." Record at 223.
In contrast, Sentencing Phase Final Instruction No. 55 stated in part: "In
order to return a recommendation you must all agree." Record at 235.
The applicable statute provides: "If a jury is unable to agree on
a sentence recommendation after reasonable deliberations, the court shall discharge the jury and
proceed as if the hearing had been to the court alone."
Ind.
Code ' 35-50-2-9(f) (1993). The statute does not require the jury to recommend
against life imprisonment when it cannot reach an agreement on the recommendation.
Although the quoted portion of Preliminary Instruction No. 46 was inconsistent with the
statute, the error favored the defendant.
Any error on this issue was therefore harmless.

Sentencing
The defendant argues that the trial court erred in finding and weighing mitigating
circumstances; that his sentence violates constitutional provisions prohibiting cruel and unusual punishment
See footnote
and
requiring proportionality; and that his sentence is manifestly unreasonable.
The jury found the defendant guilty on all six counts charged, but, as
to Count I, it returned a verdict of guilty of murder but mentally
ill at the time of the offense. The evidence established that the
defendant obtained a weapon, rode his bicycle to a former co-worker's house in
search of money to purchase cocaine, and placed his bicycle where it could
not be seen from the street. He then went inside the house,
stabbed Carolyn Hawkins twenty-seven times with a knife and threatened to harm her
twelve-year-old daughter, an action which he later admitted he knew would stop Carolyn
from leaving. He also forced her daughter to search the house for
valuables, which he took. He then returned to his house, hid his
blood-covered shirt behind a chair, and washed the knife used in the attack.
Mental health professionals testified that the defendant was mentally impaired at the
time of the murder as a result of drug addiction. Other evidence
showed that the defendant was under the influence of drugs at the time
he committed the crime, that he came from a very dysfunctional family, and
that he had expressed remorse for the crime.
Acknowledging that the trial court properly found a valid aggravating circumstance (intentional killing
committed during a robbery) and numerous mitigating circumstances, the defendant argues that the
trial court failed to give sufficient weight to all the mitigators and any
mitigating weight to the evidence that he could be rehabilitated and reformed.
In its thoughtful sentencing decision, the trial court found and weighed as mitigating
circumstances the jury's verdict of guilty but mentally ill, the defendant's dysfunctional family
background, his decision not to flee the jurisdiction, and his confession and expressions
of guilt and remorse.

The determination that a circumstance is mitigating is within the trial court's discretion,
and the court is not obligated to explain why it finds a circumstance
not to be mitigating.
Taylor v. State, 681 N.E.2d 1105, 1112 (Ind.
1997); Widener v. State, 659 N.E.2d 529, 533 (Ind.1995). The trial court
is not required to give the same weight to proffered mitigating circumstances as
the defendant does. Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999);
Montgomery v. State, 694 N.E.2d 1137, 1142 (Ind. 1998); Battles v. State, 688
N.E.2d 1230, 1236 (Ind. 1997). The trial court's determination of the proper
weight to be given aggravating and mitigating circumstances and the appropriateness of the
sentence as a whole is entitled to great deference and will be set
aside only upon a showing of a manifest abuse of discretion. Thacker,
709 N.E.2d at 10; Willsey v. State, 698 N.E.2d 784, 796 (Ind. 1998).
The record of the sentencing proceeding does not demonstrate that the trial
court abused its discretion in considering and weighing the mitigating evidence presented by
the defendant. We find no error in the sentence imposed by the
trial court.
The defendant argues that his sentence of life imprisonment without parole violates Article
I, Section 16 of the Indiana Constitution, which declares in part: "Cruel and
unusual punishments shall not be inflicted. All penalties shall be proportioned to
the nature of the offense."
The constitutional prohibition against cruel and unusual punishments proscribes atrocious or obsolete punishments
and is aimed at the kind and form of the punishment, rather than
the duration or amount.
Ratliff v. Cohn, 693 N.E.2d 530, 542
(Ind. 1998); Wise v. State, 272 Ind. 498, 502, 400 N.E.2d 114, 117-18
(1980). Punishment is cruel and unusual under Article I, Section 16 if
it "'makes no measurable contribution to acceptable goals of punishment, but rather constitutes
only purposeless and needless imposition of pain and suffering.'" Ratliff, 693 N.E.2d
at 542 (quoting Douglas v. State, 481 N.E.2d 107, 112 (Ind. 1985)).
The sentence of life imprisonment without parole does not constitute cruel and unusual
punishment.
We will find a sentence not proportional "'only when a criminal penalty is
not graduated and proportioned to the nature of an offense.'"
Conner v.
State, 626 N.E.2d 803, 806 (Ind. 1993) (quoting Hollars v. State, 259 Ind.
229, 236, 286 N.E.2d 166, 170 (1972)). Given the circumstances presented in
this case, we decline to find the penalty of life imprisonment without parole
to be disproportional to the nature of the offense committed.
The defendant also claims that his sentence is manifestly unreasonable. A reviewing
court may review and revise a criminal sentence, but only when the sentence
is "manifestly unreasonable in light of the nature of the offense and the
character of the offender." App. R. 17(B). To warrant modification of
an otherwise proper trial court sentence, we must find it to be clearly,
plainly, and obviously unreasonable.
Thacker, 709 N.E.2d at 10; Brown v. State,
698 N.E.2d 779, 784 (Ind. 1998)); Prowell v. State, 687 N.E.2d 563, 568
(Ind. 1997). The sentence imposed in this case is not manifestly unreasonable.

Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and BOEHM, J., concur. SULLIVAN, J., concurs and dissents with
separate opinion in which RUCKER, J., concurs.

I concur with the Court
=s opinion except as to the sentence of life
without parole.
The law permits sentence of life without parole only if the State proves
that the mitigating circumstances are outweighed by the aggravating circumstances.
See footnote
See Ind.
Code ' 35-50-2-9(i)(2) (Supp. 1994). I do not believe the standard was
met in this case.

The sole aggravating circumstance proved by the State in this case was the
so-called
Afelony murder@ aggravator C that A[the] defendant committed the murder by intentionally
killing the victim while committing or attempting to commit . . . Robbery.@
See id. ' 35-50-2-9(b)(1)(G) (Supp. 1994). While this is a serious
aggravator, we have never accorded it weight in the Ahighest range,@ a designation
we have heretofore only given the Amultiple murder@ aggravating circumstance of Ind. Code
' 35-50-2-9(b)(8).
See footnote
In any event, I would assign the mitigating circumstances here
C Defendant=s youth, dysfunctional upbringing, drug and alcohol addiction, extreme remorse and the
fact that the jury unanimously found him to be mentally ill C equal
if not greater weight. I think it is also worthy of note
that the jury was unable to make a unanimous recommendation in favor of
a life without parole sentence.

The trial court found
Athere were many mitigating circumstances@ in this case.
First, the trial court found that A[D]efendant suffered from the effects of an
extremely dysfunctional family.@ (R. at 1067.) I will discuss the expert
testimony on this point below. Second, the trial court took into consideration
that the jury unanimously found Defendant to be mentally ill.
See footnote
Third, the
trial court found that Defendant Awas very remorseful@ and noted that, rather than
fleeing the jurisdiction, he immediately went home where he showed Asigns of conscience
guilt.@ (R. at 1070.)

In addition to the trial court
=s findings, I would assign mitigating weight to
Defendant=s youth C he was twenty at the time of his crime
C and to the expert testimony presented at trial.

At trial, Dr. Robert Smith, who holds doctorate degree in psychology, testified for
the defense. Dr. Smith is a clinical psychologist and specializes in the
treatment of alcohol and other drug addictions. He practices in five hospitals
and maintains a full-time private practice in the Cleveland area. In Dr.
Smith
=s opinion, Defendant suffered from a mental disease or defect at the time
the killing occurred. It was also Dr. Smith=s opinion that Defendant=s capacity
to appreciate the criminality of his conduct was impaired as a result of
his intoxication and use of cocaine.

Dr. Smith
=s opinion was based on a two day examination of Defendant, including
a diagnostic interview, a series of psychological tests, a personality test, and an
assessment of Defendant=s use of alcohol and drugs.
See footnote
According to Dr. Smith=s
testimony, Defendant experienced a traumatic childhood, enduring a neglected home life. During
his younger years, Defendant witnessed his mother abuse alcohol, marijuana, and cocaine.
After his father abandoned him, his mother began a series of relationships with
abusive men. At one time, Defendant saw his step-father hold a gun
to his mother=s head. Additionally, Defendant had a long history of serious
alcohol and drug abuse. His abusive step-father introduced him to marijuana at
the impressionable age of seven and by the age of fourteen, he was
abusing alcohol. Defendant was placed in a foster home for several months,
and afterwards resided with his grandmother whose husband was also an alcoholic.
Defendant dropped out of high school at the tenth grade level.

Dr. Smith testified that Defendant suffered from several psychological disorders, cocaine dependence, cannabis
dependence, alcohol abuse, and a personality disorder at the time the murder occurred.
In addition, the personality test showed that Defendant had a
Amixed personality
disorder@ meaning that Defendant suffered from two distinct disorders, paranoia and anti-social behavior.
This personality test, along with an alcohol screening test, uncovered that Defendant
did in fact abuse alcohol. Dr. Smith testified that Defendant could be
rehabilitated.

Mr. Rick Gustafson, a psychiatric social worker who earned a masters degree in
social work at Indiana University, also testified for the defense. Mr. Gustafson
maintains a private practice and has counseled at psychiatric hospitals as well as
chemical dependency centers. At trial, Mr. Gustafson
=s testimony corroborated with that of
Dr. Smith=s regarding Defendant=s dysfunctional childhood. He testified that Defendant suffered from
depression with thoughts of dying.

Dr. Rodney Deaton, a court-appointed psychiatrist, diagnosed Defendant with a psychiatric disorder called
Apolysubstance dependence,@ a disorder recognized in the
Diagnostic and Statistical Manual (fourth edition). Dr. Deaton testified that a person
suffering from polysubstance dependence is dependant on at least three different substances.
In Defendant
=s case, he suffered from long-term usage of cocaine, marijuana, and alcohol
that led to a Asignificant impairment.@ Dr. Deaton stated that Defendant was
Aclearly suffering@ from this psychiatric disorder at the time the killing occurred.
Dr. Deaton further testified that cocaine intoxication can produce a delusional state, recognized
as a mental disorder and paranoia. Dr. Deaton also stated that alcohol
can have an adverse affect on a person=s ability to understand the consequences
of his or her actions. Finally, Dr. Deaton testified that Defendant had
expressed remorse over the killing of the victim. Another court-appointed psychiatrist, Dr.
Carrie Dixon,
See footnote
found that because Defendant was under the influence of cocaine and
alcohol, Defendant was not of sound mind on the night of the killings.
However, it was the opinion of Dr. Dixon that Defendant was not
suffering from a mental disease or defect on the night of the killings.

After weighing the numerous mitigating factors identified by the trial court and expert
testimony  Defendant was twenty years old at the time of the offense,
Defendant expressed extreme remorse, Defendant grew up in a severely dysfunctional family full
of violence and drug abuse, Defendant suffered from cocaine, marijuana, and alcohol addictions,
and Defendant suffered from personality disorders  as well as the jury
=s unanimous
determination that Defendant was mentally ill and the jury=s inability to reach a
unanimous recommendation that Defendant be sentenced to life without parole, I would find
that the sole aggravating circumstance does not outweigh the mitigating circumstances.

Footnote:
Section 19 provides: "In all criminal cases whatever, the jury shall
have the right to determine the law and the facts."
Footnote:
Pritchard is principally concerned with instruction language that is mandatory in
nature, thereby taking from a jury its right to determine the facts and
the law under Section 19. Pritchard, 248 Ind. at 575, 230 N.E.2d
at 421. The voluntary intoxication instruction in the present case does not contain
directive language equivalent to that in Pritchard, 248 Ind. at 568, 230 N.E.2d
at 417 ("then you shall find such defendant guilty"). But see Parker
v. State, 698 N.E.2d 737, 742 n.9 (Ind. 1998).
Footnote:
Although the defendant cites the Eighth Amendment of the U.S. Constitution,
he provides no authority regarding any applicable principles and makes no separate argument.
Such claim is thus forfeited. Ind. Appellate Rule 8.3(A)(7); Kindred v.
State, 540 N.E.2d 1161, 1168 (Ind. 1989).
Footnote:
The statute requires a finding by the trial court that Aany mitigating
circumstances that exist are outweighed by the aggravating circumstances,@ that is, the trial
court must find that aggravating circumstances outweigh the mitigating circumstances. The trial
court applied an erroneous standard in this case, finding it sufficient that the
mitigating circumstances did not outweigh the aggravating circumstance. See R. at 1071
(I cannot say in good conscience that [all of] those [mitigators] outweigh the
aggravating factor.). The point is, of course, that under the statute, if
the weight of the aggravating and mitigating circumstances is equal, life without parole
may not be imposed; under the standard enunciated by the trial court, if
the weight is equal, life without parole is available.

While erroneous, I would not reverse or remand on this basis. First,
at no point does the trial court actually find the weight of the
aggravating and mitigating circumstances to be equal. Second, Defendant
=s counsel C one of
the ablest to practice before us C does not challenge the sentence on
this basis from which I infer that she was satisfied that the trial
court considered the weight of the aggravating circumstance to outweigh the mitigating factors.
Third, despite this error, the trial court=s sentencing statement is careful and
complete, showing concern for and attention to the special requirements of this particular
statute.